Factsheet
Lothian Centre for Inclusive Living (LCiL)
Grapevine Disability Information
Lothian Centre for Inclusive Living (LCiL) is a Company Limited by Guarantee. Registered in Scotland 129392. Accepted by the HMRC as a Charity SC/017954
Postal address for main office: LCiL, Norton Park, 57 Albion Road, Edinburgh, EH7 5QY
Factsheet
Power of Attorney and Guardianship
Lothian Centre for Inclusive Living (LCiL) is a Company Limited by Guarantee. Registered in Scotland 129392. Accepted by the HMRC as a Charity SC/017954
Postal address for main office: LCiL, Norton Park, 57 Albion Road, Edinburgh, EH7 5QY
Factsheet
This factsheet has a few helpful hints on Power of Attorney and Guardianships and an overview of the options available. It is not legal advice and we would suggest contacting a solicitor for more information based on your own circumstances.
Power of Attorney:
Power of Attorney is a legal document. It lets you decide who you would want to manage your affairs if you were no longer able to do so yourself.
By instructing a Power of Attorney you are not giving up your rights or property. Your Power of Attorney should act in your best interests, and in line with your wishes wherever possible.
A person can only grant a Power of Attorney while he/she has capacity – this means that at the time when the Power of Attorney is set up, the individual must be capable of understanding and explaining his/her wishes. A solicitor or doctor will conduct an interview to ensure that the granter understands the Power of Attorney, and has capacity to decide to grant this.
You can appoint a Power of Attorney to deal with financial issues, personal welfare issues or both. You can have more than one person as Power of Attorney. This could be people acting together, a different person/people for financial and for welfare, or a main Power of Attorney and another as a substitute (in case of the first person becoming unable to perform their duties).
You should appoint a person/people you trust will act in your best interests at all times.
It is important that the person/people you choose as Power of Attorney understand your needs and wishes and are able to act in your best interests should the Power of Attorney become active. The best person for the role is not always your closest friend or relative but the person you trust most to act appropriately. It should also be someone capable of dealing with your affairs.
You can decide when to activate a financial Power of Attorney. This could be immediately, to support you with your affairs (referred to as ‘Continuing Power of Attorney’), or it could become active when you are unable to act or have been assessed as no longer having capacity to make financial decisions. Welfare Power of Attorney can only be activated when an individual has lost capacity to make welfare decisions for themselves.
Once completed, the signed document is sent to the The Office of the Public Guardian who register it on a central record, it then remains in force until it is either revoked by the granter or until death. You should budget around £250 to have a Power of Attorney prepared and registered.
If you lose capacity to make your own decisions and do not have an existing Power of Attorney in place, nobody has an automatic right to make decisions for you (not even a spouse or family member). The wishes of family members may be taken into consideration by some organisations (such as social work or the NHS), but family would need to apply for a Guardianship order from the court to legally make decisions on your behalf.
Guardianship
Like Power of Attorney, Guardianship orders appoint someone to act on another’s behalf and can cover financial matters only, welfare matters only, or both financial and welfare matters. However, Guardianship can only be granted where a person does not have capacity to make decisions on their own behalf and therefore cannot appoint a Power of Attorney to act for him/her.
Whilst Power of Attorney can be done relatively quickly, a Guardianship application takes on average 6 months to obtain. They involve an application to the court by the potential guardian and, after considering the application and required reports, the Sheriff decides whether to grant the application.
Guardianship appointments are usually for a period of5–10years, unless it can be shown there is good reason to grant the appointment for a longer period.
As with Power of Attorney, it may be useful to have more than one Guardian in case of one becoming unable to fulfil their duties. It is also possible to have Joint or Substitute Guardians.
If you are the parent of a child making the transition to adult services, it is a good idea to consult a solicitor 6 months before your child’s 16th birthday in order to ensure Guardianship is in place.
If you are applying for welfare powers, civil legal aid is available for advice and assessment. However if it is for financial and welfare guardianship there will a means test on the resources the person making the application to determine whether Civil legal aid can be used to meet the legal costs of making the application. It is worth checking if you qualify for Legal Aid and if so, using a solicitor who offers legal aid for Guardianship. In doing so you could pay around £600 in legal fees as opposed to £5000!
To find out more about legal aid and if you qualify you can call the Scottish Legal Aid Board information line on: 0845 122 8686 or use their online calculator at: http://www.slab.org.uk/Online_calculators.html
For more independent information on lawyers in Scotland we suggest contacting the Law Society for Scotland’s general enquiry line: Telephone: 0131 226 7411. Text phone: 0131 476 8359
For information on your legal rights, equality and human rights we suggest you contact the Equality Advisory & Support Service - phone: 0808 800 0082 , text phone: 0808 800 0084 Monday to Friday. 10:00 to 14:00 Post: FREEPOST Equality Advisory Support Service FPN4431
Last updated: July 2016
Lothian Centre for Inclusive Living (LCiL) is a Company Limited by Guarantee. Registered in Scotland 129392. Accepted by the HMRC as a Charity SC/017954
Postal address for main office: LCiL, Norton Park, 57 Albion Road, Edinburgh, EH7 5QY
Factsheet
Grapevine Contact details
Tel: 0131 475 2370
(Monday-Thursday 10am-4pm)
Email:
Website: www.lothiancil.org.uk
Copyright © 2014 LCiL. All Rights reserved.
Lothian Centre for Inclusive Living (LCiL) is a Company Limited by Guarantee. Registered in Scotland 129392. Accepted by the HMRC as a Charity SC/017954
Postal address for main office: LCiL, Norton Park, 57 Albion Road, Edinburgh, EH7 5QY